Mayor and Burgesses of the
London Borough of Wandsworth
(Appellants)
v.
Winder (A.P.) (Respondent)
JUDGMENT
Die Jovis 29° Novembris 1984
Upon Report from the Appellate Committee to whom was
referred the Cause Mayor and Burgesses of the London Borough
of Wandsworth against Winder (A.P.), That the Committee had
heard Counsel on Tuesday the 30th and Wednesday the 31st days
of October last and Thursday the 1st day of this instant
November upon the Petition and Appeal of the Mayor and
Burgesses of the London Borough of Wandsworth, The Town Hall,
Wandsworth High Street, London SW18 2PU praying that the
matter of the Order set forth in the Schedule thereto, namely
an Order of Her Majesty’s Court of Appeal of the 29th day of
March 1984, might be reviewed before Her Majesty the Queen in
Her Court of Parliament and that the said Order might be
reversed, varied or altered or that the Petitioners might
have such other relief in the premises as to Her Majesty the
Queen in Her Court of Parliament might seem meet; as also
upon the Case of Paul Winder lodged in answer to the said
Appeal; and due consideration had this day of what was
offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal of the 29th day of March 1984 complained of in the
said Appeal be, and the same is hereby, Affirmed and that the
said Petition and Appeal be, and the same is hereby,
dismissed this House: And it is further Ordered, That the
Appellants do pay or cause to be paid to the said Respondent
the Costs incurred by him in respect of the said Appeal, the
amount thereof to be certified by the Clerk of the
Parliaments; and that the Costs of the Respondent be taxed
in accordance with Schedule 2 to the Legal Aid Act 1974.
Cler: Parliamentor:
HOUSE OF LORDS
MAYOR AND BURGESSES OF THE LONDON BOROUGH OF
WANDSWORTH (APPELLANTS)
v.
WINDER (A.P.)
(RESPONDENT)
Lord Eraser of Tullybelton
Lord Scarman
Lord Keith of Kinkel
Lord Roskill
Lord Brandon of Oakbrook
LORD FRASER OF TULLYBELTON
My Lords,
The question is this appeal is whether it is an abuse of
process for an individual, who claims that his existing rights under
a contract have been infringed by a decision of a public authority,
to challenge the decision in defence to an action at the instance
of the public authority for payment, instead of by judicial review
under R.S.C. Ord.53. The appeal is a sequel to the decisions of
this House in O’Reilly v. Mackman [1983] 2 AC 237, and Cocks
v. Thanet District Council[1983] 2 AC 286.
Immediately before 6 April 1981, the respondent was, and
had been for some time, the tenant of a flat at Tangley Grove in
Wandsworth on a weekly tenancy at a weekly rent of £12.06. He
had a secure tenancy in the sense of section 28 of the Housing
Act 1980. The landlords were the London Borough of Wandsworth,
the appellants. On 2 March 1981, the appellants gave notice to
the respondent under section 40(1), (4) of the Act of 1980 that,
with effect from 6 April 1981, the rent would be increased to
£16.56 per week. The respondent regarded the increase as
unreasonable and he so informed the appellants. He refused to
pay the increased rent; instead he paid the old rent of £12.06 and
an increase of 8 per cent which he regarded as reasonable. The
following year in March, the appellants gave notice of a further
increase in the rent to £18.53 with effect from 5 April 1982. The
respondent again refused to pay the increased rent and paid only
such rent as he considered reasonable.
On 16 August 1982, the appellants took proceedings against
the respondent in Wandsworth County Court claiming arrears of
rent, and also claiming possession of the premises on the ground
that the rent lawfully due had not been paid. Non-payment of
rent is ground 1 for recovery of possession under Schedule 4 to
the Act of 1980. The respondent defended the action on the
ground that the appellants’ decisions to make the increases, and
the increases themselves, were ultra vires and void as being
unreasonable. He also counterclaimed for a declaration that the
notices of increase of rent were ultra vires and void and of no
effect, and for a declaration that the rent payable under his
tenancy was £12.06 per week.
The action has caused a considerable divergence of judicial
opinion so far. The appellants applied to strike out the paragraphs
– 1 –
of the defence and counterclaim which asserted that the decisions
and notices were void. Mr. Registrar Price dismissed the
application to strike out. His Honour Judge White allowed the
appellants’ appeal against the registrar’s order, and stayed the
proceedings to allow the respondent to apply for leave to apply for
judicial review out of time. The respondent did apply for such
leave but his application was refused. He then appealed to the
Court of Appeal and that court, by a majority (Robert Goff and
Parker L.JJ., with Ackner L.J. dissenting) allowed his appeal
against the order of Judge White.
Until 6 April 1981, the respondent had a contractual right
to occupy the flat, provided he paid the rent of £12.06 and
complied with the other terms of the tenancy. That was an
ordinary private law right under a contract. But by section 40 of
the Act of 1980, the appellants were entitled to vary the terms of
the tenancy unilaterally by a notice of variation, subject to certain
conditions not here material. In addition to complying with the
express statutory conditions, the appellants when they exercised
their power under section 40(4) were also bound to act reasonably
in the Wednesbury sense – see Associated Provincial Picture Houses
Ltd, v. Wednesbury Corporation [1948] 1 KB 223. That is made
clear beyond doubt by the Housing Act 1957, section 111(1), which
provides as follows:
“111(1) The general management, regulation and control of
houses provided by a local authority under this Part of this
Act shall be vested in and exercised by the authority, and
the authority may make such reasonable charges for the
tenancy or occupation of the houses as they may
determine.” (Emphasis added).
In Luby v. Newcastle-under-Lyme Corporation [1964] 2 Q.B. 64, 72,
Diplock L.J. (as my noble and learned friend then was) referring to
this provision, said:
‘”Reasonable’ in the context in which it appears in
section 111(1) of the Housing Act 1957, is in my view to be
construed as the converse of ‘unreasonable’ in the sense in
which it is used by Lord Greene M.R. [in the Wednesbury
Corporation case [1948] 1 KB 223, 229] … The court’s
control over the exercise by a local authority of a
discretion conferred upon it by Parliament is limited to
ensuring that the local authority had acted within the
powers conferred. It is not for the court to substitute its
own view of what is a desirable policy in relation to the
subject matter of the discretion so conferred. It is only if
it is exercised in a manner which no reasonable man could
consider justifiable that the court is entitled to interfere.”
The respondent seeks to show in the course of his defence
in these proceedings that the appellants’ decisions to increase the
rent were such as no reasonable man could consider justifiable.
But your Lordships are not concerned in this appeal to decide
whether that contention is right or wrong. The only issue at this
stage is whether the respondent is entitled to put forward the
contention as a defence in the present proceedings. The
appellants’ say that he is not because the only procedure by which
their decision could have been challenged was by judicial review
– 2 –
under R.S.C., Ord. 53. The respondent was refused leave to apply
for judicial review out of time and (say the appellants) he has lost
the opportunity to challenge the decisions. The appellants rely on
the decisions of this House in O’Reilly v. Mackman [1983] 2 A.C.
237 and Cocks v. Thanet District Council [1983] 2 AC 286. The
respondent accepts that judicial review would have been an
appropriate procedure for the purpose, but he maintains that it is
not the only procedure open to him, and that he was entitled to
wait until he was sued by the appellants and then to defend the
proceedings, as he has done.
In order to deal with these contentions, it is necessary to
consider what was decided by the House in those two cases. The
question raised in O’Reilly [1983] 2 AC 237 was the same as that
in the present case, although of course, the circumstances were
different. In O’Reilly, at p. 274, Lord Diplock said:
“All that is at issue in the instant appeal is the procedure
by which such relief ought to be sought. Put in a single
sentence the question for your Lordships is: whether in 1980
after R.S.C., Ord. 53 in its new form, adopted in 1977, had
come into operation it was an abuse of the process of the
court to apply for such declarations [sc. that a decision of a
public authority was void] by using the procedure laid down
in the Rules for proceedings begun by writ or by originating
summons instead of using the procedure laid down by Ord.
53 for an application for judicial review . . . .”
In that case four prisoners in Hull prison had started proceedings,
in three cases by writ and in one case by originating summons,
each seeking to establish that a disciplinary award of forfeiture of
remission of sentence made by the Board of Visitors of Hull Prison
was void because the Board had failed to observe the rules of
natural justice. This House held that the proceedings were an
abuse of the process of the court, and that the only proper
remedy open to the prisoners was by way of judicial review under
Ord. 53. There are two important differences between the facts
in O’Reilly and those in the present case. First, the plaintiffs in
O’Reilly had not suffered any infringement of their rights in
private law; their complaint was that they had been ordered to
forfeit part of their remission of sentence but they had no right in
private law to such a remission, which was granted only as a
matter of indulgence. Consequently, even if the Board of Visitors
had acted contrary to the rules of natural justice when making the
award, the members of the Board would not have been liable in
damages to the prisoners. In the present case what the respondent
complains of is the infringement of a contractual right in private
law. Secondly, in O’Reilly the prisoners had initiated the
proceedings, and Lord Diplock, throughout in his speech, treated
the question only as one affecting a claim for infringing a right of
the plaintiff while in the present case the respondent is the
defendant. The decision on O’Reilly is therefore not directly in
point in the present case, but the appellants rely particularly on a
passage in a speech of Lord Diplock, with whose speech the other
members of the Appellate Committee agreed, at p. 285D to the
following effect:
“Now that those disadvantages to applicants [for judicial
review] have been removed and all remedies for
– 3 –
infringements of rights protected by public law can be
obtained on an application for judicial review, as can also
remedies for infringements of rights under private law if
such infringements should also be involved, it would in my
view as a general rule be contrary to public policy, and as
such an abuse of the process of the court, to permit a
person seeking to establish that a decision of a public
authority infringed rights to which he was entitled to
protection under public law to proceed by way of an
ordinary action and by this means to evade the provisions of
Ord. 53 for the protection of such authorities.
“My Lords, I have described this as a general rule; for
though it may normally be appropriate to apply it by the
summary process of striking out the action, there may be
exceptions, particularly where the invalidity of the decision
arises as a collateral issue in a claim for infringement of a
right of the plaintiff arising under private law, or where
none of the parties objects to the adoption of the procedure
by writ or originating summons. Whether there should be
other exceptions should, in my view, at this stage in the
development of procedural public law, be left to be decided
on a case to case basis – a process that your Lordships will
be continuing in the next case in which judgment is to be
delivered today [Cocks v. Thanet District Council [1983] 2
A.C. 2861.”
The last paragraph in that quotation shows that Lord Diplock was
careful to emphasise that the general rule which he had stated in
the previous paragraph might well be subject to exceptions. The
question for your Lordships is whether the instant appeal is an
exception to the general rule. It might be possible to treat this
case as failing within one of the exceptions suggested by Lord
Diplock, if the question of the invalidity of the appellants’ decision
had arisen as a collateral issue in a claim by the respondent(as
defendant) for infringement of his right arising under private law
to continue to occupy the flat. But I do not consider that the
question of invalidity is truly collateral to the issue between the
parties. Although it is not mentioned in the appellants’ statement
of claim, it is the whole basis of the respondent’s defence and it
is the central issue which has to be decided. The case does not
therefore fail within any of the exceptions specifically suggested in
O’Reilly v. Mackman [1983] 2 AC 237.
Immediately after the decision in Q’Reilly, the House
applied the general rule in the case of Cocks [1983] 2 A.C. 286.
The proceedings in O’Reilly had begun before the Supreme Court
Act 1981 (especially section 31) was passed. The proceedings in
Cocks were begun after that Act was passed, but for the present
purpose nothing turns on that distinction. Cocks was an action by
a homeless person claiming that the local housing authority had a
duty to provide permanent accommodation for him. The council
resolved that the plaintiff had become homeless “intentionally” in
the sense of the Housing (Homeless Persons) Act 1977.
Consequently the plaintiff had no right in private law to be
provided with permanent housing accommodation by the authority.
The plaintiff raised an action in the county court claiming, inter
alia, a declaration that the council were in breach of their duty to
him in not having provided him with permanent accommodation.
– 4 –
In order to proceed in his action he had to show as a condition
precedent that the council’s decision was invalid. This House held
that the plaintiff was not entitled to impugn the council’s decision
in public law otherwise than by judicial review, notwithstanding
that the effect of the decision was to prevent him from
“establishing a necessary condition precedent to the statutory
private law right which he [was seeking] to enforce.” See per my
noble and learned friend, Lord Bridge of Harwich, at p. 294E. The
essential difference between that case and the present is that the
impugned decision of the local authority did not deprive the
plaintiff of a pre-existing private law right; it prevented him from
establishing a new private law right. There is also the same
distinction as in O’Reilly [1983] 2 AC 237, namely, that the party
complaining of the decision was the plaintiff.
Although neither O’Reilly nor Cocks [1983] 2 AC 286 is an
authority which directly applies to the facts of the instant appeal,
it is said on behalf of the appellants that the principle underlying
those decisions applies here, and that, if the respondent is
successful, he will be evading that principle. My Lords, I cannot
agree. The principle underlying those decisions, as Lord Diplock
explained in O’Reilly [1983] 2 AC 237, 284, is that there is a
“need, in the interest of good administration and of third parties
who may be indirectly affected by the decision, for speedy
certainty as to whether it has the effect of a decision that is
valid in public law.” The main argument urged on behalf of the
appellants was that this is a typical case where there is a need
for speedy certainty in the public interest. I accept, of course,
that the decision in this appeal will indirectly affect many third
parties including many of the appellants’ tenants, and perhaps most
if not all of their ratepayers because if the appellants’ impugned
decisions are held to be invalid, the basis of their financial
administration since 1981 will be upset. That would be highly
inconvenient from the point of view of the appellants, and of their
ratepayers, and it would be a great advantage to them if persons
such as the respondent who seek to challenge their decision were
limited to doing so by procedure under Ord. 53. Such procedure is
speedy and avoids prolonged uncertainty about the validity of
decisions. An intending applicant for judicial review under Ord. 53
has to obtain leave to apply, so that unmeritorious applications can
be dismissed in limine and an application must normally be made
within a limited period of three months after the decision which
has impugned, unless the court allows an extension of time in any
particular case. Procedure under Ord. 53 also affords protection
to public authorities in other ways, which are explained in O’Reilly
and which I need not elaborate here. It may well be that such
protection to public authorities tends to promote good
administration. But there may be other ways of obtaining speedy
decisions; for example in some cases it may be possible for a
public authority itself to initiate proceedings for judicial review.
In any event, the arguments for protecting public authorities
against unmeritorious or dilatory challenges to their decisions have
to be set against the arguments for preserving the ordinary rights
of private citizens to defend themselves against unfounded claims.
It would in my opinion be a very strange use of language to
describe the respondent’s behaviour in relation to this litigation as
an abuse or misuse by him of the process of the court. He did
not select the procedure to be adopted. He is merely seeking to
– 5 –
defend proceedings brought against him by the appellants. In so
doing he is seeking only to exercise the ordinary right of any
individual to defend an action against him on the ground that he is
not liable for the whole sum claimed by the plaintiff. Moreover
he puts forward his defence as a matter of right, whereas in an
application for judicial review, success would require an exercise
of the court’s discretion in his favour. Apart from the provisions
of Ord. 53 and section 31 of the Supreme Court Act 1981, he
would certainly be entitled to defend the action on the ground
that the plaintiff’s claim arises from a resolution which (on his
view) is invalid – see for example Cannock Chase District Council
v. Kelly [1978] 1 W.L.R. 1, which was decided in July 1977, a few
months before Ord. 53 came into force (as it did in December
1977). I find it impossible to accept that the right to challenge
the decision of a local authority in course of defending an action
for payment can have been swept away by Ord. 53, which was
directed to introducing a procedural reform. As my noble and
learned friend Lord Scarman said in Regina v. Inland Revenue
Commissioners, Ex parte Federation of Self Employed [1982] A.C.
617, 6^7G “The new R.S.C., Ord. 53 is a procedural reform of
great importance in the field of public law, but it does not –
indeed, cannot – either extend or diminish the substantive law. Its
function is limited to ensuring ‘ubi jus, ibi remedium.'” Lord
Wilberforce spoke to the same effect at p. 631 A. Nor, in my
opinion, did section 31 of the Supreme Court Act 1981 which
refers only to “an application” for judicial review have the effect
of limiting the rights of a defendant sub silentio. I would adopt
the words of Viscount Simonds in Pyx Granite Co.Ltd. v. Ministry
of Housing and Local Government [I960] A.C. 260, 286 as follows:-
“It is a principle not by any means to be whittled down that
the subject’s recourse to Her Majesty’s courts for the
determination of his rights is not to be excluded except by
clear words.”
The argument of the appellants in the present case would be
directly in conflict with that observation.
If the public interest requires that persons should not be
entitled to defend actions brought against them by public
authorities, where the defence rests on a challenge to a decision
by the public authority, then it is for Parliament to change the
law.
I would dismiss the appeal.
LORD SCARMAN
My Lords,
I agree with the speech delivered by my noble and learned
friend, Lord Fraser of Tullybelton. For the reasons he gives I
would dismiss the appeal.
– 6 –
LORD KEITH OF KINKEL
My Lords,
I agree with the speech of my noble and learned friend Lord
Fraser of Tullybelton, which I have had the opportunity of reading
in draft, and for the reasons he gives I too would dismiss the
appeal.
LORD ROSKILL
My Lords,
I have had the advantage of reading in draft the speech
delivered by my noble and learned friend. Lord Fraser of
Tullybelton. I agree with it, and for the reasons which he gives I
would dismiss this appeal.
LORD BRANDON OF OAKBROOK
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Fraser of
Tullybelton. I agree with it, and for the reasons which he gives I
would dismiss the appeal.
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